In 2008, the Supreme Court decided Baze v. Rees, a challenge to Kentucky’s method of lethal injection, which was then the primary or only method of execution by the federal government and in thirty-seven states. I authored an amicus brief on behalf of Texas and nineteen other states defending the constitutionality of lethal injection. At the time, our position prevailed 7–2.
But after Baze, private pharmaceutical companies were all too eager to assist the activist lawyers and judges by limiting or ending production of various lethal injection drug cocktails—thereby forcing states to experiment with more novel and potentially more dangerous drugs in order to carry out the executions required by the law.
By making the injections used in capital punishment cases more risky, pharmaceutical companies gave the activists exactly what they wanted: a new avenue to ban the death penalty. In the 2015 Supreme Court case of Glossip v. Gross, a bare 5–4 Court majority held that lethal injection using the drug cocktail known as midazolam did not violate the Cruel and Unusual Punishments Clause. In Glossip, Clayton Lockett was executed in Oklahoma using midazolam, dying forty-three minutes after the lethal injection after groaning about the drug cocktail allegedly not working properly. Though the majority prevailed, liberal justices in dissent again used the case as a lever to try to enact a total ban on capital punishment.
Justice Breyer wrote that circumstances had so changed since Gregg v. Georgia that the death penalty itself, in all forms and instances, is once again violative of the Cruel and Unusual Punishments Clause. In other words, Justice Breyer wrote that he believes Furman v. Georgia should be restored. He pointed to what he saw as four separate policy reasons for this: serious unreliability of the death penalty, arbitrariness in application of the death penalty, excessive delays of the death penalty, and the fact that many places in the United States have largely abandoned use of the death penalty. Justice Breyer’s dissent in Glossip was joined by his fellow long-standing Court liberal, Justice Ruth Bader Ginsburg. The separate dissenting opinion, written by Justice Sonia Sotomayor and also joined by Breyer, Ginsburg, and Justice Elena Kagan, reached the same outcome, albeit in the specific factual circumstances of that case.
Justice Scalia, joined by Justice Thomas, wrote a characteristically powerful concurrence, concluding with a stinging rebuke of Justice Breyer and the dissenting justices:
Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.
Recent capital punishment cases at the Supreme Court suggest that now there may be four votes on the current Court to bring us back to the days of Furman v. Georgia. In other words, it now seems likely that there are four sitting justices who would ignore the unmistakably plain language of both the Fifth and Fourteenth Amendments and conclude that the Eighth Amendment’s Cruel and Unusual Punishments Clause prohibits any and all forms and methods of execution.
If that is correct, on this issue, as with so many, we’re once again just one vote away from a remaking of our constitutional order.
There is a place to deal with the highly contested issues of criminal punishment, and it’s not the federal bench. Violent crime has the potential to touch any family, and the question of how society should deal with those who commit the most grievous of crimes is a question with which elected legislatures always have, and always will, wrestle. Violent crime is, I believe, qualitatively different from non-violent criminal offenses.
In the Senate, I have taken up criminal justice issues in my role as a legislator. I was proud to co-sponsor the 2018 First Step Act, criminal-justice reform legislation that lessened penalties for non-violent drug offenses. In criminal sentencing, our statutory systems have vacillated between widespread judicial discretion, which produced widely varying sentences for comparable crimes, and strict mandatory minimums and sentencing guidelines, which produced more uniformity but at the same time could result in unjustly harsh sentences in at least some of the applications.
I supported the First Step Act, the most far-reaching criminal-justice reform in decades, because I believed mandatory sentences for non-violent drug offenses had gotten too strict and that our scarce law enforcement resources were better spent combating violent crime. But the price of my support for that legislation was drawing a very clear distinction between violent crime and non-violent crime.
The Senate Judiciary Committee had previously taken up criminal justice reform twice in recent years, with the effort spearheaded by my close friend Senator Mike Lee of Utah, as well as Democratic senator Dick Durbin of Illinois. Although I supported the objective, I felt compelled to offer amendments that clearly carved out violent criminals from the reform efforts, ensuring that relief only flowed to non-violent offenders and that we did not give clemency to those who had committed the crimes of murder, rape, or other violent assaults.
Twice, the Senate Judiciary Committee rejected my proposed amendments to the legislation. In each instance, there were sufficient votes on the Committee to pass the bill out of Committee and to the Senate floor: all of the Democrats and several of the Republicans. But in both instances, I argued to the Committee that although they could move the legislation out of Committee, it would never pass on the Senate floor unless and until they accepted my amendments excluding violent criminals.
Senate Republican leadership had made it clear that the bill would not be brought forward for a vote unless there was greater consensus. And numerous Republican senators indicated both privately and publicly that they shared my already-expressed concerns about releasing violent offenders from prison. Several Republican senators expressed the view in particular
